By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
Section 188 and Schedule 8 of the Labour Relations Act (LRA) were born from the constitutional right of accused employees to a fair chance to answer to the charges against them.
The law entitles charged employees to sufficient opportunity to prepare for the disciplinary hearing, to testify on their own behalf, to bring corroborative evidence, cross examine the employer’s witnesses, use an interpreter, be represented and have an impartial chair. Employers that fail to ensure that all these rights are acceded to are likely to fall off the labour law tightrope.
In the case of Arunachellam vs Woolworths (Lex Media, 26 September 2024. Case number D217/2020) the employee was fired for using language containing racist undertones. While the Court found that the employee had deserved to be fired, it found the dismissal unfair because the employee had not been given sufficient time to prepare for the disciplinary hearing.
In the case of Madonsela vs the Legal Practice Council (Lex Info 2 September 2025. Labour Court case number 2025-125891) The Legal Practice Council, the body responsible for ensuring the integrity and status of the legal profession, abandoned its disciplinary hearing against Madonsela and fired her for frustrating the hearing’s progress.
Madonsela had been charged with fraud for issuing falsified certificates of good standing, falsifying documents, accepting money from legal practitioners, giving money to legal practitioners and conflict of interest. The disciplinary hearing was delayed by the employee numerous times over an extended period costing the employer time and money.
Frustrated by these tactics the LPC issued a letter to Madonsela to the effect that her employment had been terminated due to her having vexatiously delayed the completion of the hearing.
Madonsela lodged an application for an urgent interdict to the Labour Court alleging that her contractual rights had been breached. The Court agreed to deal with this application on an urgent basis despite the employer’s opposition to the application.
Turning to the merits the Court accepted that Madonsela’s antics in consistently applying for postponements had been in bad faith. However, it still found in the employee’s favour. That is, the Court found that the employer had not been allowed to terminate the employee’s employment contract without having given her the opportunity to answer to the new charge of having vexatiously delayed the progress of the hearing. The Court therefore declared the contractual termination void and declared the employment contract to be in continued existence.
This case reinforces the principle that, regardless of how gross the employee’s behaviour has been the employer cannot get away with terminating her employment without affording her the opportunity to defend herself. It is concerning that, 30 years after the inception of this fundamental right, employers are still failing to comply with it. This suggests that workplace decision makers do not sufficiently understand their legal obligations and the consequences of failing to comply with the law.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve the necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
